29 July 2013

Land Acquisition Bill, 2011 – A comparative analysis with the Act

by Sonali Kapoor and Neha Yogi

The Land Acquisition Bill 2011 proposes a change in the definition of “public purpose”, which is a fundamental concept in land acquisition. Presently the definition of public purpose under the Land Acquisition Act, 1894 includes provision of village sites or the extension, planned development or improvement of existing village sites; provision of land for town or rural planning; and provision of land for planned development of land from public funds in pursuance of any scheme or policy of government; land for corporation owned and controlled by the state; provision for land for residential purpose to the poor or for carrying out educational, housing, health or slum clearance scheme sponsored by the Government and also premises for locating public offices but not for companies.

The scope of the definition of public purpose has been widened in the Bill so as to include (a) provision of land for strategic purposes relating to naval, military and air force works for any other work vital to the State, which are owned and funded out of state exchequer to the tune of minimum 51% of the total project cost; (b) provision of land for infrastructure projects of the appropriate government, where the benefits accrue to the general public; and such infrastructure project must be owned and funded out of the state exchequer to the tune of minimum 51% of the total project cost; and (c) provision of land for any other purpose useful to the general public, and necessary for planned development for which land has been purchased by a person under lawful contract to the extent of 85% but the remaining 15% of the total area of land required for removing hurdles in completion of the project.

The Bill also introduces a completely new concept of "Social Impact Assessment (SIA)". Any government intending to acquire land for a public purpose is required to carry out an SIA in consultation with the local  Gram Sabha ( or equivalent body in urban areas)  in the affected area. This SIA report is required to contain data such as assessment of nature of public interest involved, estimation of affected families and the number of families likely to be displaced, study of socio-economic impact upon the families residing in the adjoining area of the land acquired, extent of lands, public and private, houses, settlements and other common properties likely to be affected by the proposed acquisition, whether the extent of land proposed for acquisition is the absolute bare minimum extent needed for the project, whether land acquisition at an alternate place has been considered and found not feasible, and study of social impact from the project, and the nature and cost of addressing them and their impact on the overall costs of the project and benefits vis-à-vis the social and environmental costs. Additionally, the government has to take into consideration the impact that the project is likely to have on various public and private properties, infrastructure such as roads, transport, sanitation, sources of drinking water, parks etc. Further, a public hearing has to be conducted in the affected area, whereby consent of at least 80% of the affected families be taken so as to enable them to voice their opinion on the proposed acquisition and the same has to be incorporated in the SIA Report. The  Report will be reviewed  by an expert group, (to be constituted by the government) which  shall give its recommendations and observations on the project in writing.

Additionally, the Bill requires constitution of a committee comprising secretaries from the various departments such as revenue, finance, tribal welfare; social justice, rural development etc and the Chief Secretary of State or Union territory shall be the ex-officio Chairperson.  If the  land sought to be acquired is 100 acres or more, the committee is responsible to ensure that the land is required for a legitimate and bona fide public purpose; on a balance of convenience, the public purpose serves larger public interest; only the minimum area of land required for the project is proposed to be acquired; and the option of acquisition of waste and degraded and barren lands has been explored and is not found feasible and a delegated committee shall comply with the requirements in case the land is less than 100 acres. Such a pre-condition is likely to affect various projects in India, whenever made applicable.

The Bill prohibits the acquisition of irrigated multi-cropped land except as provided for in the Bill, under exceptional circumstances as a demonstrable last resort. In order to mitigate the damage, an equivalent area of cultivable waste land shall be developed for agricultural purposes.

The Bill has also introduced the definition of ‘affected families’ which includes land owners, agricultural laborers, tribal’s and forest dwellers, families whose livelihood have been dependant on forest and water bodies for the preceding 3 years and families who have been given land by the state or the central government. Provision for compensation to land owners will be determined by the Collector and shall be paid within 2 years from the date of declaration of acquisition.

The procedure with regard to publication of notification in the gazette and newspapers and hearing of objections more or less remains unchanged.

Rehabilitation and Resettlement Scheme

The Bill provides displaced families with rehabilitation and resettlement entitlements like the Indira Awas Yojana in rural areas, one time allowance of INR 50, 000 for affected families, option of mandatory employment, etc. In addition to these, every resettled area is provided with certain infrastructural facilities including roads, drainage, drinking water, grazing land, banks, post offices, public distribution outlets, etc. The R&R Scheme requires a preliminary notification for acquisition to be published and subsequently appointing an administrator who shall conduct a survey and prepare a scheme to be discussed in the  local Gram Sabha and objections to it shall be heard by the administrator. He shall then prepare a report and submit it with the Collector for the approval of the Commissioner. Once the scheme is approved, the government shall issue directions for its execution. The Bill also provides that R&R provisions are mandatory for all private purchases through private negotiations if the land purchased is over 100 acres in rural areas.

One of the key elements however that the Land Acquisition Bill seems to have missed out is the scenario where the land was acquired for a public purpose, but the acquired land or part thereof has remained unutilized. There are a number of cases filed in the Supreme Court which have petitioned the court to exercise its special jurisdiction and decide the status of land. This problem is particularly stark, as the land gets acquired for public purpose at  rates fixed under the land acquisition law and then is sold to private builders at commercial rates to the detriment of the poor from whom the land was acquired from. The Bill should have considered this aspect and should have a provision to the effect, that in the event the land acquired is required to be sold for any reason, the people from whom the land was acquired shall be an integral part of the selling mechanism.

It is important to safeguard the interests of the local displaced communities but increasing red tape and bureaucratic intervention will only further increase the delay and uncertainty in infrastructure projects that are critical for economic growth. 

 [The authors are Associates, Corporate Practice, Lakshmikumaran & Sridharan, New Delhi]  

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